There are Problems Mediation Can’t Solve (Ripa v. Perfetti)

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Dodo Bird extinction: a problem that cannot be solved (photo by Marilyn Swanson)

By: Donald L Swanson

Lots of things are wrong with the case of Ripa v. Perfetti [Fn. 1]. The ills start with this fact: all parties are pro se.  The case illustrates, once again, that limitations exist on the problems mediation can solve. In this case, a frustrated Bankruptcy Judge encourages the parties to mediate: one side agrees, but the other side won’t.

Facts

Here’s what happened.

Debtor files a Chapter 13 bankruptcy. Thereafter, her case converts to Chapter 7, where she receives a discharge.

–Litigation Begins on Discharge of a Claim

Meanwhile, Plaintiffs file a Complaint titled “Dischargeability of Rent,” asking that Debtor’s discharge not apply to their $8,008.33 claim.

In response, Debtor files a Motion to dismiss Plaintiffs’ Complaint for failure to state a claim and for no service of process. The Bankruptcy Judge allows Plaintiffs to amend.

Then, Plaintiffs file their “Amended Complaint in Adversary Proceeding,” which (i) increases the amount in controversy to $10,800.16, and (ii) provides more detail on fraud allegations.

Here are Plaintiffs’ fraud allegations :

  • Debtor had provided a credit report to Plaintiffs (so Debtor could rent their condo) showing no bankruptcy history—yet, Debtor had filed 14 personal bankruptcy cases from 1997 through 2018, each of which was dismissed; and
  • Debtor listed Plaintiff’s address incorrectly in the bankruptcy, so she could falsely claim that Plaintiffs were served with documents.

–Multiple Procedural Motions

In response, Debtor files a Motion to dismiss Plaintiff’s Amended Complaint for failure to state a claim and for no service of process. The Bankruptcy Judge denies this Motion, (i) saying he is “at a loss here to ascertain how Debtor cannot understand the Ripas’ complaint against her,” and (ii) because Debtor has no explanation for why service is inadequate

Instead of moving forward with discovery, mediation and trial in due course, Debtor files her first Motion to Reconsider. The Bankruptcy Judge, (i) denies this Motion, but (ii) orders Plaintiffs to obtain another summons and serve it upon Defendant (this would be the third service attempt).

Plaintiffs serve a new alias summons and the Amended Complaint on Defendant. Unfortunately, this summons (prepared by the Clerk’s Office) incorrectly captions the proceeding as “Adam Ripa v. Kim Ripa” (those two names are the Plaintiffs’ names). So, the Clerk’s Office dutifully re-issues the Alias Summons, with the parties’ names corrected, citing “Clerk’s Office Error.” That prompts Defendant to file a third motion to dismiss, which the bankruptcy Judge denies.

Then, Debtor files a motion to reconsider and her fourth motion to dismiss.

Judge’s Mediation Suggestion Rejected

At a hearing on these two latest motions, the Bankruptcy Judge expresses frustration and asks the parties to consider mediation—at no expense. Plaintiffs agree. But Debtor declines the mediation offer, asking instead that the Judge rule on her motions.

So, the Bankruptcy Judge rules—denying Debtor’s motions.

Conclusion

The Ripa v. Perfetti case is an Exhibit A for these propositions:

  1. Pro se parties often have difficulties in Court;
  2. When parties bear no costs in their litigation efforts (e.g., no attorney fees), there is no brake against unreasonable behavior; and
  3. Limitations exist on the problems that mediation can solve.

—————————–

Footnote 1. This article is based on a Bankruptcy opinion (and related filings) in Ripa v. Perfetti (In re Perfetti), Adv. No. 19-1182 (Bankr. D. N.J., decided Feb. 25, 2020, Doc. 79–not for publication).

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